Reducing the appeal

Everybody knows that cases go to the Court of Appeal on a point of law. Or at least, everyone used to know, but that was before Lord Justice Simon Brown decided to overturn the jury decision that footballer Bruce Grobbelaar had been libelled by The Sun. Whether or not you agree that reversing the judgment is the start of a trend, it was certainly controversial. It challenges assumptions about the role of the Appeal Court and hints at a diminishing acceptance of the jury's objectivity. It also points towards a more powerful status for the judge. Courtroom culture has been reinvented since the new Civil Procedure Rules were introduced in April 1999. One of the core objectives of the legislation, to cut costs by resolving disputes before they reach the courts, while desirable, gives judges more responsibility. Judges now make their own orders, decide which witnesses to hear and which documents to use, and even choose which issues are central to the case.

None of this is a problem if the courts are doing their job properly, but unfortunately the changes come amid criticism that the standard of justice at the Court of Appeal is not coming up to scratch. When The Lawyer produced its survey, a wide range of litigation practitioners expressed disquiet at the performance of certain judges, suggesting that such criticism is more than just aggrieved lawyers hitting out at the perceived cause of an adverse decision.

Barlow Lyde & Gilbert's head of commercial litigation Richard Dedman argues that the Court of Appeal is in a state of flux. "Some of the brilliant judges, such as Lord Hoffmann and Lord Phillips of Worth Matravers (now Master of the Rolls), have moved to the House of Lords, and they've left a gap at the Court of Appeal. Now we need more judges and we need to restrict the number of appeals. The Court of Appeal does try to provide a judge with the right background, but resources don't enable it to do it all the time. This means that the choice of judge may well affect the outcome of the case."

It would also appear that the Woolf reforms have failed to reduce the number of cases going to the Court of Appeal. Lovells litigation partner Russell Sleigh says: "Our impression is that it's taking longer to get a hearing date because there's too much work."

Steve Cantle, head of litigation at Kennedys, agrees. "There needs to be more Appeal Court judges, because you don't always get the right judge for the right dispute," he says. "My criticism is that you might get a judge at the Court of Appeal who hasn't had that much experience in the practice area relevant to the case.

"If you get a very complex construction or insurance case going to the commercial courts, you get a commercial judge who is well known in his field. But at the Court of Appeal it's a bit of a lottery. You could get a chancery or a common law judge, and this can't be right at a superior court."

Sleigh says there is an increasing tendency for judges to dissent. The effect of dissenting is obvious. Although the judgment is still binding, the authority is less and the party that has lost is given an incentive to take the case to the House of Lords. "It's a question of how lawyers react. They may be willing to go back to the Court of Appeal to argue a similar point if a judge has dissented in the past," says Sleigh.

He believes it to be an unfortunate shift in the judicial landscape. "There are times when cases are visibly and vocally disagreed, which means there's likely to be less anonymity in the future," he says.

In an effort to speed up the process, there is now much more emphasis on preparing and logging cases before they start. In the wake of the Woolf reforms, litigation solicitors are inevitably taking on a larger role. There is far more contact between lawyers and the civil appeal courts, and often skeleton arguments and documentation are prepared before the trial. Dedman says that there are cases where the court has written its judgment before the case is heard. "The whole process has become very mechanistic," he says.

Cantle says that the appeal process is "very inconsistent, because of the number of people involved and because they all say different things". The statistics bear out the belief that, whether because of dissenting judges, inconsistent decisions or the Woolf reforms, there are more cases being taken to the House of Lords. Last year, 68 cases went to the House of Lords compared with 51 in 1999 and 52 in 1998. Obviously, changes in legislation and the adoption of European directives, including the Human Rights Act, have a part to play. But there is a more disturbing interpretation: is the House of Lords having to overturn bad decisions by the Court of Appeal. An increasing number of lawyers are starting to believe so. n